Judge: Anne Richardson, Case: 22STCV30581, Date: 2024-01-09 Tentative Ruling

Case Number: 22STCV30581    Hearing Date: January 9, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiffs Barry Robertson (“Barry”) and Elizabeth Robertson (collectively, “Plaintiffs”) sue Defendants Michael McClinton (“McClinton”), Esmeralda Rubio, and Does 1 through 30 pursuant to a September 19, 2022 Complaint alleging claims of (1) Breach of Oral Contract, (2) Breach of Express or Implied Warranty, (3) Breach of Implied Warranty, (4) Negligent Hiring, (5) Negligence, (6) Fraud, (7) Disgorgement, and (8) Declaratory Relief. 

The claims arise from allegations that, pursuant to a contract between the parties, and with all checks made out to Defendant Rubio at McClinton’s direction, Defendant McClinton and his construction crew worked on building a retaining wall on Plaintiffs’ property, performed electrical, heating, ventilation, and air conditioning (HVAC) work thereon, and promised to complete other work as well, such as installing pavers, a new driveway, sprinkler systems, driveway lights, and new plants and landscaping, only for Defendants to fail to complete all the work they were paid to do or complete such work in an unworkmanlike fashion, resulting in damages to Plaintiffs in the minimum amount of $200,000 related to the retaining wall alone, as well as additional fees and costs Plaintiffs will need to pay to complete the work not performed by Defendants and to repair the damages Defendants did to Plaintiffs’ property. 

On September 8, 2023, Plaintiffs moved for summary judgment or in the alternative, summary adjudication against McClinton.  McClinton did not oppose the Motion, prompting Plaintiffs to file a notice of no opposition to the Motion. There is a facially valid proof of service attached at the end of the Motion.

Summary Judgment: DENIED

Summary Adjudication Legal Standard: “[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code of Civ. Proc., § 437c, subd. (c).)  The moving party bears the initial burden of production to make a prima facie showing no triable material fact issues.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.”  (Id. at p. 850, fn.11.)  If the moving party meets this burden, the burden shifts to the opposing party to make a converse prima facie showing that a triable issue of material fact exists.  (Ibid.)  Plaintiffs may shift the burden of proof to the opposition by submitting evidence as to every element of the cause of action. (Code Civ. Pro., §437c, subd. (p)(1); WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4^th 525, 532.)

Here, Plaintiffs move for summary judgment and in the alternative, summary adjudication, on all causes of action. Their motion is unopposed.

First Cause of Action, Breach of Oral Contract: DENIED

Plaintiffs’ first cause of action is for breach of oral contract.  To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Plaintiffs submit McClinton’s admission, Barry’s declaration, and Plaintiffs’ attorney’s declaration. Barry states, “In or around April 2021, McClinton approached us to offer his construction services and expertise to complete some improvements to our property. Betsy and I asked whether McClinton if he had the experience and ability to make improvements on our house, including building a retaining wall, adding more landscaping, grading the land, expanding the sprinkler system, paving a new driveway, completing electrical work for heating, ventilation, and air condition, installing pavers, a new driveway, sprinkler systems, driveway lights, and add new plants and landscaping.” (Decl. Barry, ¶ 4.) He further states, “McClinton said he did. We trusted him because already was doing construction work up the hill.” (Ibid.) However, nowhere in Barry’s declaration, McClinton’s admission, or the attorney declaration does it state that Barry and Elizabeth expressly communicated an acceptance to McClinton’s offer The essential difference between an implied and an express contract is the mode of proof: the terms of an express contract are stated in words, while those of an implied agreement are manifested by conduct. (Civ. Code, §§ 1620, 1621; Youngman v. Nevada Irrigation District (1969) 70 Cal.2d 240, 246.) Because Plaintiffs pleaded breach of oral contract, an express contract is at issue. Thus, they must use words, not conduct, to assent to McClinton’s offer.

Accordingly, Plaintiffs’ Motion for Summary Adjudication is DENIED as to the Complaint’s first cause of action for breach of oral contract.

Second and Third Causes of Action, Breach of Express or Implied Warranty and Breach of Implied Warranty: DENIED

A warranty is a contractual term concerning some aspect of the sale, such as title to the goods, or their quality or quantity. (Windham at Carmel Mountain Ranch Assn. v. Super. Ct. (2003) 109 Cal.App.4th 1162, 1168.) A construction contract or other contract for labor and materials carries with it an implied warranty that the product will be fit for its intended use as to both workmanship and materials, and that the contractor's breach of that warranty may give rise to tort as well as contractual liability. (See Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 582.)

As discussed above, Plaintiffs have not met their burden to submit evidence that an oral contract exists between them and McClinton. The existence of a contract is a prerequisite to a warranty claim.

Thus, Plaintiffs’ Motion for Summary Adjudication is DENIED as to the Complaint’s second and third causes of action.

Fourth Cause of Action, Negligent Hiring: DENIED

The elements of a cause of action for negligent hiring, retention, or supervision are (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.) 

Plaintiffs have not submitted evidence that McClinton had reason to believe undue risk of harm would exist because of whom he hired for Plaintiffs’ home improvement project.

Thus, Plaintiffs’ Motion for Summary Adjudication is DENIED as to the Complaint’s fourth cause of action.

Fifth Cause of Action, Negligence: DENIED

The elements of a cause of action for negligence are (1) a legal duty to use due care; (2) a breach of such legal duty; (3) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Breach is the failure to meet the standard of care. (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.)

The formulation of the standard of care is a question of law for the court. (Regents of University of Calif. v. Super. Ct. (2018) 29 Cal.App.5th 890, 903.) Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant’s conduct has conformed to the standard. (Ibid.)

The average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry. (Miller v. L. A. County Flood Control Dist. (1973) 8 Cal.3d 689, 702–03.) Thus, expert testimony is necessary.

Here, Plaintiffs argue that McClinton had a legal duty to use due care to perform and complete the work he represented that he had the competence, skill, and due care to complete and that he breached that duty when (1) the work was defective, substandard, and not conforming to code and (2) when he and his crew damaged other existing parts of Plaintiffs’ home. (Mot., pg. 10.)

Plaintiffs provide as evidence discovery admissions, Barry’s declaration, Richard S. Rathke’s declaration, and Gregory Axten’s declaration.

Axten is a licensed engineer and principal engineer, president, and CEO of American Geotechnical, a geotechnical engineer and materials testing and inspection firm. (Decl. Axten, ¶ 2.) From 1989 to 2014, he served on the Los Angeles County – Engineering Geology and Soils Review and Appeals Board. (Ibid.) He is the project manager for American Geotechnical’ s study of the retaining wall and soil at Plaintiffs’ property. (Id., ¶ 3.) He states that on March 11, 2022, he performed the study and analysis of the retaining wall and the soil condition and earth pressure the retaining wall would be required to withstand. (Id., ¶ 4.) He concludes that the wall stability ratios reflect that the retaining wall built on Plaintiffs’ property is unstable and inadequate and that it is below the required depth to prevent from sliding and overturning. (Ibid.) However, Plaintiffs do not state the relevancy of Axten’s opinion to the issue of negligence.

Rathke is a licensed general contractor in California and senior project consultant for McCormick Consulting Group. (Decl. Rathke, ¶ 2.) He performed a visual inspection of Plaintiffs’ property to provide a report on the as-built condition and cost to repair conditions that relate to the work performed by McClinton. (Ibid.) He states that the retaining wall was built without a soils report, engineering, approved plans, permits, or required inspection. (Id., ¶ 3.) He also states that several slope areas had grading work and wooden retaining wall work done without permits or inspections. (Id., ¶ 4.) The electrical work was also done without permits or inspection. (Id., ¶ 5.) Rathke also states that the irrigation system lacks proper coverage of landscape and requires additional work by another landscaping contractor to complete. (Id., ¶ 6.) Further, there is no accessibility to certain levels of the landscape without climbing over a handrail. (Ibid.) There is incomplete grading at another area of the landscape and no lights were installed along the driveway. (Ibid.) Rathke also states that numerous, lengthy, millimeter-thick cracks exist on the driveway. (Id., ¶ 7.) However, Plaintiffs do not state the relevancy of Rathke’s assertions to the issue of negligence.

Because neither Barry nor attorney John B. Larson have proclaimed themselves to be experts, the Court will not consider their declarations. The discovery admissions do not meet the requirement for expert testimony.

Thus, Plaintiffs’ Motion for Summary Adjudication is DENIED as to the Complaint’s fifth cause of action.

Sixth Cause of Action, Fraud: DENIED

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

Plaintiffs asserts that McClinton represented that he had the requisite skills, knowledge, and expertise to perform the work on Plaintiffs’ home when he did not. (Mot., pg. 11.) Plaintiffs advance discovery admissions, Barry’s declaration, Richard S. Rathke’s declaration, and Gregory Axten’s declaration. However, the discovery admissions and declarations do not support Plaintiff’s assertion. For example, admission number four states that McClinton did not complete the entire scope of the work on the property that Plaintiffs hired him to perform. Plaintiffs do not state how this statement supports McClinton’s purported misstatement. Plaintiffs submit the same statements from Rathke and Axten as they submitted for the issue of negligence. Similarly, none of those assertions, discussed above, support that McClinton lacks the requisite skills, knowledge, and expertise to perform the work on the subject property. Plaintiffs also submit Barry’s declaration, and he states that the wall was not built to code, his driveway has cracks, the electrical work did not conform to code, the HVAC work was not done to code, and areas of the landscaping became inaccessible. (Decl. Robertson, ¶¶ 5-9.) However, similarly, Plaintiffs do not state how these assertions support McClinton’s purported misstatement.

Thus, Plaintiffs’ Motion for Summary Adjudication is DENIED as to the Complaint’s sixth cause of action.

Seventh Cause of Action, Disgorgement: DENIED

Business and Professions Code section 7031, subdivision (b) permits recovery of compensation paid to an unlicensed contractor.

Plaintiffs advance discovery admission number one, where McClinton was deemed to admit that he is an unlicensed contractor.

The Court finds that Plaintiffs have not submitted the requisite evidence because it does not admit that McClinton was unlicensed at the time he performed work on Plaintiffs’ property.

Thus, Plaintiffs’ Motion for Summary Adjudication is DENIED as to the Complaint’s seventh cause of action.

Eighth Cause of Action, Declaratory Relief: DENIED

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) Code of Civil Procedure section 1060 authorizes actions for declaratory relief under a “written instrument” or “contract.” “The ‘actual controversy’ language encompasses a probable future controversy relating to the legal rights and duties of the parties.” (Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877.)

Plaintiffs argue that, as alleged in the Complaint, because McClinton breached an oral contract because of the defective construction and workmanship, declaratory relief is appropriate. (Compl., ¶ 47.) However, there is no basis for declaratory relief where only past wrongs are involved. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366.) 

A pleading may be defective in failing to allege an element of a cause of action. (Leek v. Cooper (2011) 194 Cal. App. 4th 399, 412.) The summary judgment proceeding is thereby necessarily transmuted into a test of the pleadings and the summary judgment motion into a motion for judgment on the pleadings. (Ibid.) In these circumstances it has been said that a defendant's motion for summary judgment is in legal effect a motion for judgment on the pleadings. (Ibid.)

Thus, Plaintiffs’ Motion for Summary Adjudication, or Motion for Judgment on the Pleadings is DENIED as to the Complaint’s eighth cause of action.

Conclusion

Plaintiffs Barry Robertson (“Barry”) and Elizabeth Robertson’s Motion for Summary Judgment or in the Alternative Summary Adjudication is DENIED.